Shehane v. Wimbish
34 Ga. App. 608
Ga. Ct. App.
1925
Check Treatment
Jenkins, P. J.

(After stating the foregoing facts.) 1. A motion to dismiss has been made by Wimbish, the defendant in error in the main bill of exceptions, on the ground that this court is without jurisdiction to entertain the same. He contends that Lexington was not a city when the city court of Lexington was created by the General Assembly, and that, therefore, the city court of Lexington is not a constitutional city court, and the writ of error will not lie. The act incorporating the City of Lexington and the act creating the city court of Lexington were approved on the same day. The order in which they were approved is not disclosed by the record. The act creating that court contained the following provision: “Sec. XLYI. Be it enacted . . that this act shall go into effect immediately upon the approval of an act before the present General Assembly to incorporate the City of Lexington, in Oglethorpe county, but this act shall not be effective until the act above mentioned shall become a law.” Ga. L. 1899, p. 406. The act incorporating the City of Lexington appears in Ga. L. 1899, p. 239. Irrespective of any presumption which might exist as to the order of approval, so as to establish the legality of the city court act, it would seem that it really makes no difference in what order the two acts were approved, for the reason that the legislature may enact a law to take effect upon the happening of a future event or contingency; and it makes no difference what the nature of the contingency is, so that it be a moral and legal one, not opposed to sound policy. Floyd County v. Salmon, 151 Ga. 313 (106 S. E. 280); Ross v. Jones, 151 Ga. 425 (1) (107 S. E. 160); Barrett v. Dallmeyer, (Mo.) 245 S. W. 1066; Poindexter v. Pettis County, (Mo.) 246 S. W. 38; Washington Terminal Co. v. District of Columbia, 36 App. (D. C.) 186; Ex parte Ah Pah, 34 Nev. 283 (119 Pac. 770).

2. Defendant in the court below, who is plaintiff in error in the main bill of exceptions, preserved exceptions upon the ground that the judge of the city court of Lexington refused to refer to a jury the exceptions of faGt to the auditor’s report, but tried them himself and rendered final judgment thereupon. In her exceptions pendente lite it appeared that no original written demand for a jury trial was made by either of the parties at the call of the case, as authorized by the act creating the city court of Lexington. There were two trials of the exceptions of fact to the auditor’s *612report, one before a certiorari was sued out and the other afterwards. At the first trial it appeared that there was an actual agreement in open court, by both litigants, that the judge should try the exceptions of fact without a jury. The judge found for the plaintiff, and the defendant sued out a certiorari. The superior court sustained certain exceptions of law and overruled others, and ordered a new trial. At the second trial the defendant sought a trial by jury of her exceptions of fact. She contends that her previous consent went only to the particular trial, and did not estop her from subsequently exercising her right to have a trial by jury of her exceptions of fact, at the second hearing. The Civil Code (1910), § 5141, provides: “In all cases where an auditor is appointed, exceptions of fact to his report shall be passed upon by the jury as in other cases of fact.” This is a general law, but must be construed with reference to the local statute creating the city court of Lexington, providing how a jury trial in causes pending therein may be dispensed with. This particular provision of the code is no more predominating in its effect as to the right of trial by jury than the constitutional provision as to jury trials of issues of fact generally. It seems, since the local statute provides that a party who do'es not at the time specified file a written demand for a jury trial forfeits his right to present and future trials by jury, notwithstanding the general constitutional provision preserving the right of jury trial, that the statute would apply to trials of exceptions of fact to an auditor’s report. It will be recalled that the statute providing for trial by jury of exceptions of fact to an auditor’s report limits the operation of such procedure “as in other cases of fact.” While the exact point seems never to have been absolutely ruled in our State, there is a dictum of Powell, J., in the case of Forbes v. Davis, 8 Ga. App. 560, 561 (69 S. E. 1132), which throws light on the matter. He there says: “It is true that under the act creating the city court, in which the case was tried, jury trial is waived unless demanded, but this fact does not render the error of the' court’s striking the exceptions harmless. It gave the judge the power of himself examining the exceptions on thei/r merits, or, if he so chose, of referring them to a jury, but not the right of striking them and directing a verdict.” He invoked a comparison with the case of Pelham Manufacturing Co. v. Powell, 8 Ga. App. 38 (68 S. E. 519), where *613it was held that “When a statute confers upon the judge of a court jurisdiction to try the facts, unless jury trial be demanded at the return term, no subsequent demand for a jury trial can thereafter divest the judge of this jurisdiction, though in the meantime the ease has been tried once and a new trial granted. The statute relates to cases, and not to trials.” This case, in principle, governs the case at bar on this point. We do not put the decision upon the intermediate waiver of trial by jury, which both litigants made in open court. That waiver doubtless was intended to apply only to that particular trial, and possibly would not be comprehensive enough to cover a later trial. We put the decision upon the effect of the local statute quoted above. Of course, when no jury trial has been demanded, and the act is not mandatory for the judge to try the case, the judge has a discretion to refer the issues to a jury, but in the record we find no evidence of an abused discretion on the part of the judge. We can not impute to his honor an improper exercise of this discretion simply because he arrived at the' same conclusion again.

3. Mrs. Shehane assigns error upon the ruling admitting a certain lease contract between herself and Schiller and his associates, in which it was agreed that the latter parties should pay to her a certain percentage of the value of the land plus the cost of the improvements as an annual rental of the theater. This assignment was upon her exceptions pendente lite. It appears that this document was admitted over her objection, in the hearing before the auditor; the auditor, in his ruling, restricting its effect simply to showing the interest of Schiller and his associates in the subject-matter of the litigation. The judge of the city court, upon exception to this ruling of the auditor, held that such evidence was admissible, not only to show the interest of these parties named, but also upon the general question of Mrs. Shehane’s claim for damages. When the judgment of the city court upon the exceptions to the auditor’s réport were passed upon by the superior court, in the certiorari proceedings, the action of the city court judge in approving the admission of this evidence for the general purposes mentioned was affirmed. Whether the judgment of the superior court, not having been excepted to, became the law of the case, so that its correctness can not now be inquired into by this court (see Civil Code (1910), § 5201; Wilensky v. Brady, 121 Ga. 90, 48 S. E. *614687; Couch v. White, 18 Ga. App. 198, 89 S. E. 183; West v. Henderson, 22 Ga. App. 701, 97 S. E. 100), counsel for Mrs. Shehane, in their brief, concede that such would be true if the judgment involved “rulings of law,” it being their contention, however, that the superior court, in passing upon this matter, was in reality acting upon an exception of fact, and not of law; and that, therefore, there would be no estoppel by judgment. But we are at a loss to see how an exception to the admission of evidence could ever be properly considered as an exception of fact and not of law; in whatever category it may have been placed by the pleadings. But irrespective of whether the evidence was properly admitted on the last trial under “the law of the case,” and irrespective of the correctness of the contention just mentioned, we think the admission of the evidence complained of was not in fact erroneous, since, while it could not be taken as in any wise conclusive upon the question of damages, yet it was a circumstance throwing light upon this issue, which could be properly considered together with all the other facts and circumstances of the case.

Judgment affirmed on main bill of exceptions; cross-bill dismissed.

Stephens and Bell, JJ., concurring.